Citation Nr: 1121385	
Decision Date: 06/02/11    Archive Date: 06/09/11

DOCKET NO.  09-47 752	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E. Woodward Deutsch, Associate Counsel



INTRODUCTION

The Veteran served on active duty from September 1966 to September 1968.  

This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the Veteran's previously denied claim for service connection for PTSD and denied his claim for a TDIU.  


FINDINGS OF FACT

1.  In May 2011, prior to promulgation of a decision, the Board received confirmation that the Veteran had died in April 2011.  

2.  At the time of his death, the Veteran had claims of entitlement to service connection for PTSD and entitlement to TDIU pending before the Board. 


CONCLUSION OF LAW

The pending appeals are dismissed due to the Veteran's death.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Regrettably, the Veteran died in April 2011.  At the time of his death, he had an application to reopen a previously denied claim for service connection for PTSD and a claim for TDIU pending before the Board.  However, as a matter of law, appellants' claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330 (1997); Landicho v. Brown, 7 Vet. App. 42 (1994).

As the Veteran's claim has been rendered moot by his death, it is dismissed for lack of jurisdiction.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2010).  

The Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the Veteran for purposes of processing the claim to completion.  Such a request must be filed not later than one year after the date of the Veteran's death.  Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2010) (creating new 38 U.S.C. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008).  As provided for in the new provision, a person eligible for substitution includes a living person who would be eligible to receive accrued benefits due to the Veteran under 38 U.S.C.A. § 5121(a).  In the future, VA will issue regulations governing the rules and procedures for substitution upon death.  Until such regulations are issued, an eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the Veteran should file a request for substitution with the RO from which the claims originated. 


ORDER

The appeal is dismissed due to the Veteran's death.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs